Magistrate can take cognizance of offence even though contrary report of police
It follows that where the police report forwarded to the Magistrate under Section 173 (2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under Section 173 (8) of the Cr.P.C. states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in
the two reports, make out an offence committed by the person. This interpretation has given by this Court in Abhinandan Jha & Ors. v. Dinesh Mishra [AIR 1968 SC 117] to the provisions of Section 173 and Section 190 of the Criminal Procedure Code, 1898, which were the same as in the Criminal Procedure Code, 1973. In Abhinandan Jha (supra), para 15 at page 122 of the AIR this Court observed: The police, after such investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.
11. After referring to the law laid down in Abhinandan Jha (supra) this Court has further held in Mrs. Rupan Deol Bajaj Anr. v. Kanwar Pal Singh Gill & Anr. [AIR 1996 SC 309] that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the Court that a case for taking cognizance was made out, the Court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for
overruling the objections of the complainant be recorded by the Court and this was necessary because the Court while exercising power under Section 190, Cr.P.C. whether to take cognizance or not to take cognizance exercises judicial discretion.
Supreme Court of India
Dharmatma Singh vs Harminder Singh & Ors. on 10 May, 2011
Bench: R.V. Raveendran, A.K. Patnaik
